TB v State of New South Wales and Quinn; DC v State of New South Wales and Quinn

[2015] NSWSC 575

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

TB v State of New South Wales and Quinn; DC v State of New South Wales and Quinn [2015] NSWSC 575

Hearing dates:

11, 12, 13, 14, 15, 18; 19; 21 and 22 August 2014

Date of orders:

22 May 2015

Decision date:

22 May 2015

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

In matter No. 2008/289325 DC v The State of New South Wales & Anor
Judgment for the first and second defendants;
The plaintiff to pay the first and second defendants’ costs of and incidental to the proceedings on the usual basis forthwith after they have been agreed or assessed.

In matter No. 2008/289326 TB v The State of New South Wales & Anor
Judgment for the first and second defendants;
The plaintiff to pay the first and second defendants’ costs of and incidental to the proceedings on the usual basis forthwith after they have been agreed or assessed.

Catchwords:

TORTS – negligence – liability of statutory authority – where authority notified of child physical and sexual abuse – whether authority owed plaintiffs a duty under the law of negligence in exercise of its statutory powers

TORTS – negligence – breach of duty of care – failure of statutory authority to report child abuse to police – whether breach was a necessary condition of harm suffered by plaintiffs

TORTS – negligence – liability of social worker of statutory authority – where worker received the complaint made of child physical and sexual abuse – whether worker owed plaintiffs the same duty of care as the statutory authority – in circumstances where discretion of statutory power was conferred on Director

Legislation Cited:

Child Welfare Act 1939 (NSW);
Children (Criminal Proceedings) Act 1987 (NSW);
Civil Liability Act 2002 (NSW);
Crimes Act 1900 (NSW);
Crown Proceedings Act 1988 (NSW);
Evidence Act 1995 (NSW);
Limitation Act 1969 (NSW);
Uniform Civil Procedure Rules 2005 (NSW).

Cases Cited:

Ashrafi Persian Trading Co Pty Ltd (t/as Roslyn Gardens Motor Inn & Anor) v Ashrafinia [2000] NSWCA 243; Aust Torts Reports 81-636;
Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1;
B v Attorney General of New Zealand [2003] UKPC 61; 4 All ER 833;
Blatch v Archer (1774) 1 Cowp 63;
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1;
Caledonian Collieries v Speirs [1957] HCA 14; 97 CLR 202;
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649;
Craine v Australian Deposit and Mortgage Bank Limited [1912] HCA 60; 15 CLR 389;
Curtis v Harden Shire Council [2014] NSWCA 314; 203 LGERA 352; 68 MVR 1;
DC v New South Wales [2010] NSWCA 15;
Edgecock v Minister for Child Welfare [1971] 1 NSWLR 751;
Holloway v McFeeters [1956] HCA 25; 94 CLR 470;
Hunter & New England Local Health District v McKenna; v Simon [2014] HCA 44; 89 ALJR 39;
Jones v Dunkel [1959] HCA 8; 101 CLR 298;
Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 128;
Luster Hosiery Ltd v York (1935) 54 CLR 134
M v The Queen [1994] HCA 63; 181 CLR 487;
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254;
O’Reilly and Ors v Commissioners of the State Bank of Victoria (1982) 153 CLR 1;
Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330;
SB v New South Wales [2004] VSC 513;
Selsam Pty Ltd v Galeb [2005] NSWCA 208; 3 DDCR 1
Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215;
Sullivan v Moody [2001] HCA 59; 207 CLR 562;
Sykes v Director of Public Prosecutions [1962] AC 528; TC v State of New South Wales [1999] NSWSC 31; Aust. Torts Report 81 – 500;
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422;
Zraika v Walsh [2015] NSWSC 485

Category:

Principal judgment

Parties:

TB (plaintiff);
DC (plaintiff);
State of New South Wales (first defendant)
Caroline Quinn (second defendant)

Representation:

Counsel: Dr A S Morrison SC with Mr K Pryde and Mr N Morrissey for the plaintiffs.
Ms P Wass SC with Mr I Harvey for the defendants.

Solicitors: Graham Jones Lawyers for the plaintiffs

File Number(s):

2008/289326; 2008/289325

Publication restriction:

Yes, see note below.

judgment

The plaintiffs are identified by pseudonym to comply with the former provisions of s 11(1) Children (Criminal Proceedings) Act 1987 (NSW) which prohibits publication or broadcast of the names of the plaintiffs in a way that connects them with criminal proceedings referred to in these reasons (see now s 15A(1)(a) Children (Criminal Proceedings) Act 1987 (NSW)).

1. TB and DC are sisters. It is uncontested in these proceedings that they were victims of sexual and physical abuse by their stepfather between 1974 and shortly before 20th April 1983, when the abuse was first notified to what was then called the Department of Youth and Community Services. This case is about what happened after that date.

2. It well to record now that the stepfather was prosecuted for his monstrous offending in 2005 on an indictment containing 9 counts, covering offences committed between about the 1st of January 1974 and 30th December 1983. 4 of the counts related to TB, and 5 to DC. The ninth offence is said to have been committed sometime between 1st January 1983 and 31st December 1983, but from the evidence in this case, it is known that this offending, referred to in the evidence as the “tennis court incident”, occurred before 20th April 1983. The stepfather eventually pleaded guilty to all charges and was sentenced in the District Court of New South Wales to 10 years imprisonment, with a non-parole period of 4 years.

3. TB and DC claim damages for personal injury and mental harm caused by what they allege is the continuation of the sexual and physical abuse by the stepfather after the Department was notified of their very serious ill-treatment. The defendants are the State of New South Wales, representing the Department and the Department’s District Officer who handled the case.

4. The plaintiffs’ cases are that the Department and the District Officer owed them a duty of care imputed by the law of negligence. The duty is said to be one to take reasonable care to avoid each plaintiff being exposed to the ongoing risk of physical and mental harm from continuing abuse by their stepfather. The requirements of reasonable care are said to arise out of the exercise of the defendant’s statutory power under the Child Welfare Act 1939 (NSW) (now repealed) (CW Act), and in particular s 148B(5). The plaintiffs say that although the Department, through its District Officer investigated their complaints and took court proceedings in the Children’s Court, it failed to report the abuse to the police. Had that happened, they contend, given the stepfather’s criminal history, he would have been arrested, charged, and either denied bail or granted it only subject to the observance of very strict conditions. Either outcome would have denied him the opportunity of continuing his abuse of them. Their case is that this failure caused ongoing physical injury by way of sexual and other assaults, causing, in the case of each of them, serious psychiatric injury.

5. The Department denies that it owed any duty to either plaintiff to use reasonable care in the exercise of its statutory powers, the breach of which would sound in damages in a civil action. It said: in any event, it did not accept that there was ongoing abuse after its notification; it denied having failed to report the matter to the police, saying the natural inference was it did; and that the failure to charge and prosecute the stepfather in that circumstance, is explained by the exercise, by police, of a discretion not to prosecute the stepfather which cannot be called into question in the courts. Moreover, whilst accepting the physical injury and serious mental harm suffered by each plaintiff, the Department contends that any ongoing abuse, which it does not accept occurred, would have made no difference to the admittedly very injurious outcome suffered by TB and DC as victims of repeated child sexual and physical abuse over many years before the Department was first notified of their plight.

6. Accordingly there are both legal and factual issues to be decided, and any entitlement of TB and DC to damages depends upon them.

Decision Summary

7. For the reasons which follow, I have made the following decisions:

1. The Department owed each of TB and DC a duty actionable under the law of negligence to use reasonable care in the exercise of its powers conferred by s 148B(5) CW Act;

2. As a professional, the District Officer may have owed TB and DC a duty of care in the provision of welfare services, but that duty was not the same as the duty owed by the Department. As the s 148B(5) powers were not conferred upon her, she owed no duty in relation their exercise;

3. The Department breached its duty of care by omitting to notify the New South Wales Police Child Mistreatment Unit of the serious physical and sexual abuse suffered by TB and DC, as required by the inter-departmental guidelines to which both agencies were party;

4. Assuming I am wrong about her duty, the District Officer did not breach any duty she may have owed under s 148B(5). She discharged her duty by reporting the abuse to her superior officers who had responsibility to implement the guidelines;

5. The Department’s breach was not a necessary condition of the harm suffered by TB because I am not satisfied on the balance of probabilities that the stepfather continued to abuse her physically and sexually after she reported his previous misconduct to the Department;

6. The Department’s breach was not a necessary condition of the harm suffered by DC because I am not satisfied on the balance of probabilities that the stepfather continued to abuse DC after his previous misconduct was notified to the Department; and

7. Had it been necessary to so decide, I would have held that had the matter been reported to the police as required by the guidelines, the stepfather would have been charged with his serious offending, and if bailed, strict conditions would have been imposed which would have protected TB and DC from further abuse whilst he was at liberty awaiting trial.

8. In these circumstances there must be judgment for each defendant. In accordance with the usual practice, I have made contingent findings about the damages I would have awarded in each case.

History of the litigation

9. The case is principally concerned with events which occurred between April 1983 and the early part of 1984, over 30 years ago. The proceedings were not commenced until 2008, one-quarter of a century after the events occurred. Each proceeding was summarily dismissed as showing no reasonable cause of action by a Judge of this Court in 2009 ([2009] NSWSC 297; [2009] NSWSC 326). An appeal from these decisions to the Court of Appeal was allowed on 22nd February 2010 ([2010] NSWCA 15).

10. Given the long delay in the commencement of the proceedings, it was necessary for TB and DC to obtain relief under the Limitation Act 1969 (NSW) to maintain the proceedings. That contest was fought out over 3 days in November 2011, and on 1st March 2012, Harrison AsJ made orders permitting the proceedings to continue ([2012] NSWSC 142; [2102] NSWSC 143).

Challenges to proof

11. After 30 years the parties obviously face much greater than usual challenges proving the facts for which they contend, always accepting that the legal and persuasive burden rests with TB and DC. The fact of the abuse they each endured may be expected to have been seared upon the consciousness of TB and DC. On the other hand, as has often been remarked upon by learned judges, memory is fallible and may be expected to fade over time, at least so far as the chronology of events is concerned. This is a well-known phenomenon and one likely to have affected the testimony of all of the lay witnesses who gave evidence before me. In Craine v Australian Deposit and Mortgage Bank Limited [1912] HCA 60; 15 CLR 389 at 391, Griffith CJ said:

We all know that, when it is necessary to fix the date of an event which took place many years ago, little or no reliance can be placed on memory, unless it is aided by some contemporaneous or nearly contemporaneous event, the date of which can be fixed by independent testimony, and which is itself connected with the event the date of which is in controversy, so that the memory recalling one event naturally recalls the other also. In weighing evidence of such a kind, the greatest reliance is placed upon testimony of matters as to which the witnesses are least likely to be mistaken.

In M v The Queen [1994] HCA 63; 181 CLR 487 at 534 McHugh J said:

It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analyzing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue.

This is a case where the accuracy of the detail is crucial.

12. Trial courts are generally admonished “to limit their reliance on the appearances of witnesses and to reason to their conclusion, so far as possible, on the basis of contemporary material, objectively established facts and the apparent logic of events”: Fox v Percy [2003] HCA 22; 214 CLR 118 at 129 [31]. Regrettably in the present case there is a relative absence of “contemporary materials”, notwithstanding that bureaucracies may generally be expected to retain their files. To explain this, two affidavits of Peter Maxwell were read, sworn on 8th November 2010 and 24th November 2014 respectively (Exhibits 3.5 and 3.6). Mr Maxwell is a retired police officer and now a licensed private investigator. He was instructed by the Crown Solicitor to undertake searches to locate files or other records maintained by the Department and New South Wales Police. From his affidavits (Exhibits 3.6 [15]; 3.5 [22]), it would appear certain files were in existence in about May 2008 when the proceedings were commenced and were transferred to an officer of the Department. When interviewed in 2010 the officer said the file he saw in 2008 related to DC, not TB, and only contained “cards titled “Child at Risk Notification” (such a card was tendered as Exhibit A.6). Other files were recorded as having been sent to the Department’s facility at Bateman’s Bay, but had been misplaced and could not now be located. By 2014, the officer had no useful recall of the matter. He could not remember any file relating to TB. Mr Maxwell’s subsequent investigations suggested that a file in relation to TB had been forwarded to the officer back in May 2008. Despite his efforts Mr Maxwell could not track down further documents.

13. Mr Maxwell also said that from 1981 to 1985 the New South Wales Police Force maintained a Child Mistreatment Unit at Bankstown whose function was to investigate physical and sexual abuse of children (Exhibit 3.5 [5] – [10]). Probably due to various amalgamations, reorganisations and relocations over the years since, Mr Maxwell was unable to track down the Unit’s Notification Book which as will be seen causes forensic disadvantage on both sides of the record. Reference will be made to such contemporaneous documents as are available.

Duty of care

14. The Department and the District Officer dispute that they owed TB and DC a duty of care actionable for breach under the law of negligence. Before the Court of Appeal, the Department seemed to accept that it owed each of TB and DC a duty of care, but that the duty of care did not extend to “requiring [the Department] to report suspected sexual abuse to the police”: at [48] – [49] by Sackville AJA (McColl and Basten JJA agreeing). Sackville JA continued at [50] – [54]:

50 The concession made by the respondents concerning the existence of the duty of care identified by the primary Judge was founded on the judgment of Mason P (with whom Priestley and Beazley JJA agreed) in TC. His Honour expressed the view in that case (at [117], [125]) that it was arguable that the State, through YACS, owed a duty to exercise reasonable care in the discharge of the mandatory requirements of both limbs of s 148B(5) of the CW Act: that is, the requirements that upon YACS receiving a notification under s 148B(2) or (3) of the CW Act, it was to cause an investigation to be promptly made into the matters notified and, if satisfied that the child may have been assaulted or ill-treated, to take such action as the Director thought appropriate, including reporting matters to the Police.

51   The observations in TC were obiter dicta, but since the respondents did not challenge the existence of the duty of care relied on by the applicants, it is not necessary to explore the course of authority after TC. Nonetheless, it should be noted that subsequent authority tends to support the views expressed by Mason P. In Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215, the High Court held that a statutory power to act in a particular way is a necessary precondition to the liability of a public authority for breach of a duty of care: at [5], per French CJ; at [112], per Gummow, Hayne and Heydon JJ (“joint judgment”); at [149], per Crennan and Kiefel JJ. The joint judgment pointed out (at [112]-[113]) that although power is a necessary condition:

“it is not a sufficient condition. Statutory power to act in a particular way, coupled with the fact that, if action is not taken, it is reasonably foreseeable that harm will ensue, is not sufficient to establish a duty to take that action. Rather … the existence or otherwise of a common law duty of care owed by a statutory authority (or in this case the holder of statutory power) ‘turns on a close examination of the terms, scope and purpose of the relevant statutory regime’. Does that regime erect or facilitate ‘a relationship between the authority [here the holder of statutory power] and a class of persons that, in all the circumstances, displays sufficient characteristics, answering the criteria for intervention by the tort of negligence’?

Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated, the degree of vulnerability of those who depend on the proper exercise of the relevant power, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. Other considerations may be relevant.” (Citations omitted.)

52   In applying this principle, it is difficult to think of a more vulnerable class of persons than children subjected to sexual abuse by parents or guardians. It is self-evident that the risk of harm to a child exposed to an abusive parent or guardian may be very high. Therefore the value of personal autonomy that is said to inform much of the common law of negligence (Stuart v Kirkland-Veenstra, at [88] (joint judgment); CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 260 ALR 606, at [38], [54], per Gummow, Heydon and Crennan JJ) does not militate against the existence of a duty of the kind relied on here. Nor would there seem to be any lack of coherence between the imposition of a duty of care on the State when notified of sexual abuse of a child and the statutory framework governing the welfare of children as in force in 1983: cf Sullivan v Moody [2001] HCA 59; 207 CLR 562, at 581-582 [55]-[60], per curiam; CAL No 14, at [39]-[42]. See also SB v State of New South Wales [2004] VSC 514;13 VR 527, at 549ff [132]ff, per Redlich J (where the authorities are reviewed).

53   If it can be accepted that the duty of care relied on by the applicants is maintainable as a matter of law (at least for the purposes of the summary dismissal applications), a pleaded allegation that the respondents breached the duty raises factual questions. Contrary to the respondents’ submissions, a pleaded allegation that the respondents breached the duty by failing to notify the Police of suspected or known sexual abuse cannot be said to be so obviously untenable that it cannot possibly succeed. It is not difficult to imagine circumstances where report of suspected or known sexual abuse to the Police is the only practicable means of protecting a child exposed to the abuse, for example where YACS knows that the child has been removed from a safe house by the abusing parent or guardian and cannot immediately be located.

54 The applicants may or may not ultimately be able to make out a factual basis for establishing that the respondents breached the duty to take reasonable care for the safety of the applicants in the performance of their statutory obligations and the exercise of their statutory powers under s 148B of the CW Act.

15. The relevant legislation had been set out and discussed by Sackville AJA in the following terms (at [24] – [25]):

24   The applicants’ case founded on breach of duty requires reference to the power and duties imposed on the Director of YACS and others by the Child Welfare Act 1939 (“CW Act”), as in force in 1983. Section 148B of the CW Act provided as follows:

“(1)   In this section -

‘court’ … means any court;

‘prescribed person’ means -

(a)   a medical practitioner; and

(b)   a person who is a member of any class of persons prescribed for the purposes of this paragraph …

(2)   Any person who forms the belief upon reasonable grounds that a child -

(a)   has been assaulted; or

(b)   is a neglected child within the meaning of Part XIV,

may -

(c)   notify the Director of his belief and the grounds therefore either orally or in writing; or

(d)   cause the Director to be so notified.

(3)   A prescribed person who, in the course of practising his profession, calling or vocation, or in exercising the functions of his office, as the case may be, has reasonable grounds to suspect that a child has been assaulted, ill-treated or exposed shall -

(a)   notify the Director of the name or a description of the child and those grounds either orally or in writing; or

(b)   cause the Director to be so notified

promptly after those grounds arise.

…

(5)   Where the Director has been notified under subsection (2) or (3), he shall -

(a)   promptly cause an investigation to be made into the matters notified to him; and

(b)   if he is satisfied that the child in respect of whom he was notified may have been assaulted, ill-treated or exposed, take such action as he believes appropriate, which may include reporting those matters to a constable of police.”

25   Part XIV of the CW Act, now repealed, provided for “neglected or uncontrollable children” to be “apprehended” under a warrant and brought before a court. The expression “neglected child” was defined to include a child who was “ill-treated or exposed” or who was “exposed to moral danger”: s 72(d), (n). If a court found that a child was neglected, it could make any of a number of orders: s 82(1). These included committing the child to the care of a responsible person on such terms as the court thought fit or committing the child to the care of the Minister to be dealt with as a ward admitted to “State control”: s 82(1)(c), (d). Where it appeared to a court that an offence had been committed in the case of a child brought before the court, and that the health or safety of the child was likely to be endangered, the court could make such order as circumstances required for the care of the child until a reasonable time had elapsed for the bringing of charges against the alleged perpetrator: s 136(1).

To these provisions should be added s 158 which provides that “no suit or action shall lie” against the Department or its officers for “any act, matter or thing done … for the purpose of carrying out the provisions” of the CW Act if done “in good faith and with reasonable care”. In Edgecock v Minister for Child Welfare [1971] 1 NSWLR 751 at 755 Jacobs JA saw no inconsistency between that provision and the provisions of the legislation then in force for bringing claims against the government. At first instance in TC v State of New South Wales [1999] NSWSC 31; Aust. Torts Report 81 – 500 at 65,673[158] Studdert J said:

I am satisfied that this legislation, and in particular s148B, was introduced for the protection of a limited class, namely children at risk. I find no pointer in the statute that parliament did not intend to create a source of a private cause of action. Indeed, s158 may be regarded as an indicator that parliament intended that a private duty could arise under the statute.

Section 158 seems to contemplate that a “suit or action” might lie where the Department or its officers have acted for the purpose of carrying out the provisions of the Act without “reasonable care” i.e. with negligence. (Compare s 46 Civil Liability Act 2002 (NSW) (CLA)).

16. In SB v New South Wales [2004] VSC 513 Redlich J carried out an exhaustive review of the authorities. That case concerned sexual abuse of a young person who was a ward of the State. The State had argued that s 148B could not be a source of duty, as SB was not a child, defined in the Act as a person under 16 years of age. In the end his Honour’s finding of duty did not depend upon the scope of s 148B. Rather he founded it upon the provisions of ss 23 and 76, the former dealing with the Department’s wardship powers, and the latter with the power to “without warrant apprehend”, inter alia, any young person who is “neglected” (See SB v NSW at 574, [237] – 575, [241]; and 589, [297].

17. In Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215, in their joint judgment Crennan and Kiefel JJ said:

The question of whether there was a duty at common law in this case requires, as a minimum, a power given by the statute. This is because it is the existence of a power, to avert the risk of harm, which would set the police officers apart from persons generally and the common law rule that no action is required to protect others. It is the availability of such a power which may inform considerations as to the existence of a relationship and the ability to control the risk of harm which may be relevant to the existence of a duty. However, it is not the common law which determines whether the power is enlivened. It is the [legislation] which is the sole source of the power.

18. As at April 1983 both TB and DC were children. TB was aged 15 years and 8 months, and DC was 12 years and 6 months.

19. There can be no doubt that s 148B is engaged in the present case. The relevant notification is under subsection (2). And it may have been given by either TB telephoning the Department a day or two before 20th April 1983 (Exhibit A.47 [30] – [31]; Exhibit 3.7 [19]) or the District Officer interviewing TB at Blacktown High School on 20th April 1983 (Exhibit A.3). Either way, the s 148B(5) power was engaged. And this necessary, but insufficient precondition to the imputation of a duty of care to a public authority was satisfied. The content of the information was that TB had been assaulted sexually and physically by her stepfather from the age of about 6 or 7 (Exhibit A.3). There may then have been some doubt about whether the sexual abuse was continuing, but TB told the District Officer of two recent physical assaults, one of which was the tennis court incident and another “within the last 2 and a half weeks” over the stepfather’s refusal to condone TB going to Tasmania on an excursion with her school. From this long history it was reasonably foreseeable, at the general level sufficient for the determination of the duty question that TB was at risk of further harm. To put it another way, it was reasonably foreseeable that further harm would ensue if the Department did not take action to protect TB’s welfare. Thus a second necessary, but I acknowledge, insufficient condition of the existence of a duty of care was established. The evidence I have recounted so far is not controversial.

20. The powers that were engaged by these facts were, first, to “promptly cause an investigation to be made into the matters notified”; and secondly, if satisfied that TB had been assaulted, to “take such action as” the Department “believes appropriate, which may include reporting those matters to a constable of police”. In the case of similar legislation in New Zealand it has been held that the law of negligence imputes a duty of reasonable care in relation to the power to promptly investigate: B v Attorney General of New Zealand [2003] UKPC 61; 4 All ER 833.

21. The same matters are present in DC’s case. In her case “a child at risk notification form” (Exhibit A.6) is extant. It is numbered 83/1474. It refers to another form numbered 83/1456 which has not been reproduced. I would infer this missing form relates to TB. In DC’s case Exhibit A.6 records that the notification was received by the District Officer and that the grounds for notification were sexual abuse. The grounds identify the stepfather as the perpetrator. It will be necessary to return to this form in some detail later in these reasons. From the District Officer’s statement (Exhibit 3.7 [23] – [26]), the District Officer spoke to a teacher at Blacktown Girls’ High School and formed the view that DC’s “health, welfare and safety were endangered”. The District Officer exercised her power under s 76 CW Act to “apprehend” on the evening of 21st April 1983 DC on the ground she had reason to believe DC was a neglected child, and took her to “a shelter”. Section 78 required DC to be brought before the Children’s Court “as soon as practicable thereafter”. The District Officer interviewed DC at her office the following morning and received an account of the stepfather having had sexual intercourse with DC when she was about 9. DC was taken before the Court that day (Exhibit A.4) and was charged as “a child against whom an offence has been committed and that the health, welfare or safety of the child is likely to be endangered.” From these circumstances it cannot be gainsaid that the Department’s powers under s 148B(5) were engaged and it was reasonably foreseeable that DC was at risk of further sexual abuse. At the general level at which it is appropriate to make the foreseeability enquiry for the purpose of determining the existence of a duty of care, if a child is subject to a risk of sexual abuse, this inherently involves a risk of mental harm. Accordingly, the necessary but insufficient conditions of the existence of a duty of care of engagement of statutory power and foreseeability of harm are present in DC’s case also.

22. In Sullivan v Moody [2001] HCA 59; 207 CLR 562 the High Court rejected the argument that professionals involved in child welfare or protection work owed any duty of care recognised by the law of negligence to persons suspected of sexually abusing children when undertaking investigations activated by that suspicion. This was very substantially because the responsibility of conducting investigations, or exercising powers, in the interests of children who may have been abused would be entirely inconsistent with subjecting the professionals to a duty to have regard to the interests of the suspects: Sullivan v Moody at 582 [60]. However, the unanimous court made the point that it was “not directly concerned with any potential tortious liability to the children involved”: 572 [24]. The decision does not stand in the way of the imputation of the duty in the present case.

23. In a frequently cited passage from Sullivan v Moody, the Court said at 579 [50]:

Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle. (Footnotes omitted)

See Hunter & New England Local Health District v McKenna; v Simon [2014] HCA 44; 89 ALJR 39 at 43 [17] – [19].

24. The first difficulty discussed in Sullivan v Mooney arises out of the application of the principle discussed in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 which the Department relies upon here, that a person owing a duty is not liable for the consequences of the criminal acts of third parties. This is an aspect of a wider principle that a person, absent some special relationship with the plaintiff, is usually under no obligation to take action to protect others. There are many recognised exceptions: see Ashrafi Persian Trading Co Pty Ltd (t/as Roslyn Gardens Motor Inn & Anor) v Ashrafinia [2000] NSWCA 243; Aust Torts Reports 81-636 at 68,335 [64] – [66]. The exceptional categories are not closed. Here the first and second mentioned “problems” should be considered together. The Department’s powers under the CW Act are to be exercised for the protection and welfare of children. The statutory powers are conferred for the express purpose of safeguarding children from assault or other forms of mistreatment. In my view, the terms of the statutory powers and the purpose for which they are conferred create a special relationship between the Department and children, who the Director is satisfied after investigation have been assaulted, or neglected; the latter category extending to ill-treatment.

25. In my view, there is no problem in this case of “indeterminacy of class”. A duty to take appropriate action only arises in respect of children who, after notification and investigation, the Department is satisfied require the protection of the Department’s intervention by exercise of its statutory powers. Nor is there any problem with the need to preserve the coherence of other legal principles or of the scheme of CW Act which governs the Department’s relationship with the plaintiffs. On the contrary, the whole purpose of the Act is to protect children at risk, taking action to that end does not conflict with the Department’s statutory responsibilities; it gives effect to them. To the extent to which the exercise of the Department’s statutory powers may extend to reporting apparently criminal conduct to police, the suggested common law duty operates entirely consistently with the criminal law which under the common law in force at the time made it a felony to fail to report serious crime: Sykes v Director of Public Prosecutions [1962] AC 528. In general terms, the law of torts and the criminal law have common origins. There is no incoherence or inconsistency in them working together. An obvious example is the law of assault and battery itself. The same matter may give rise to concurrent criminal and civil liability.

26. If one evaluates the salient features taken to inform a decision about “the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury” (Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at 676 [102]), they almost all favour the imputation of the duty of care. As I have said, foreseeability of harm and engagement of relevant statutory powers is established. The nature of the harm is the personal safety of a child, a consideration of which the common law is normally solicitous. As Sackville AJA remarked in the Court of Appeal it is hard to imagine a class of persons less able to look after themselves than children subjected to sexual abuse by their parents (at [52]). Once the Department intervened it may be taken that there is a high degree of reliance by each plaintiff upon it for protection. And by intervening, the Department has directly assumed responsibility. These matters place the Department and the plaintiffs in a close, indeed special, relationship. The powers to be exercised by the plaintiff are conferred for the purpose of protecting children identified as at risk after notification. Any failure of the defendant to exercise its powers was likely to expose the plaintiffs to a high degree of risk of ongoing harm at the hands of their stepfather. It may be that the Department’s action would involve a significant imposition on the autonomy of the stepfather. But given his proclivities, this certainly would have been in the public interest.

27. All of these circumstances, taken together, persuade me that it is appropriate for the common law to impute a legal duty of reasonable care on the Department in the exercise of its statutory powers.

28. It is necessary, however, to have regard to the provisions of the CLA. Although the events with which this case is concerned predate the commencement of that Act by some 25 years, the circumstance that the proceedings were not commenced until May 2008 means that the Act applies to them: Sch 1, Pt 3, Cl 6 CLA. Part 5 is concerned with the liability of public and other authorities. Of its provisions, the Department relies upon ss 43A, 44, and 46. No express reliance is place upon s 42, concerned with the effect of the limitations on an authority’s financial and other resources and their allocation across the breadth of its functions. Some evidence was led as to general procedures and applicable standards, including guidelines. But these matters may more appropriately be considered when determining questions of breach. Likewise s 43A which is concerned more with the standard of care applicable to an asserted case of civil liability arising out of the exercise, or failure to exercise special statutory powers.

29. Section 44 CLA is concerned with cases of what was referred to, at common law, as non-feasance: Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280 at [396]. This is not such a case, here the Department acted. This is a case concerned with an omission in the course of exercising of statutory powers, or misfeasance. If I am wrong about that, for the reasons discussed by Brennan J (dissenting) in Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 at 347 [25], the plaintiffs would have “locus standi to seek a public law remedy”, as artificial as that conclusion may seem in the circumstances, being persons affected by the Department’s decision.

30. Section 46 applies to this case. In my judgment it abrogates any general application of the principle applied in Caledonian Collieries v Speirs [1957] HCA 14; 97 CLR 202 at 221. That principle is “when statutory powers are conferred they must be exercised with reasonable care so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned and was likely to be occasioned, by their exercise, damages for negligence may be recovered”. However, I have not applied this principle in expressing my conclusion that it is appropriate to impute a duty of care to the Department in this case.

31. I am not of the view that the District Officer owes any corresponding or concurrent duty. I accept that as a social worker a District Officer, like other professionals, may owe a duty of care to persons to whom she provides professional services: see Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1. But that is not the current field of discourse. The case pleaded and argued against the District Officer is that she owed the plaintiffs duties having the same content as the duty asserted to be owed by the Department. In my judgment, this is misconceived. The specific statutory powers, the existence and engagement of which are essential, but insufficient, conditions of the imputation of the duty, are conferred upon the Director of the Department and not upon its individual and subordinate officers, even if in other areas (for example s 76 CW Act), authorised officers may have independent functions or powers.

24. I accept the argument that in the ordinary course of public administration, functions and powers conferred upon the Director of the Department may well be administered on a daily basis by its officers: O’Reilly and Ors v Commissioners of the State Bank of Victoria (1982) 153 CLR 1 at 10 – 12; ss 5 and 10A CW Act. As the evidence in the case makes clear, the District Officer was a relatively junior and young officer accountable in the performance of her duties to the senior officers to whom she reported. It may have fallen to her to implement appropriate action under s 148B(5)(b), but she was not legally responsible for the exercise of the statutory power, or discretion. It is not appropriate to impute the duty owed by the Department, concurrently to the District Officer.

Assessment of breach of duty

33. The assessment of the question whether the duty has been breached is to be undertaken by application of ss 5B, and 43A CLA: Curtis v Harden Shire Council [2014] NSWCA 314; 203 LGERA 352; 68 MVR 1 at [5] – [6]; [221]; and [266]; Zraika v Walsh [2015] NSWSC 485 at [161]. The provisions of s 5B are familiar and it is unnecessary to set them out in full in this judgment.

34. The chapeau to s 5B(1), in conformity with the previous general law, requires, as a starting point the correct identification of relevant risk of harm. Section 5B applies in all cases where the defendant’s negligence is said to consist of a failure to take precautions against the relevant risk of harm. It is accordingly necessary to know what specific act or omission on the defendant’s part, the plaintiff is relying upon as constituting negligence; and what precaution the plaintiff says would have averted the materialisation of the relevant risk of harm. These matters are precursors to the process of assessing breach. Unlike the assessment of breach itself, they necessarily involve the benefit of hindsight.

35. Here, in each case, the relevant risk is the risk of further injury and mental harm being suffered by each plaintiff by ongoing sexual and physical abuse at the hands of her stepfather. The specific act or omission relied upon by each plaintiff as constituting negligence (failing to take precautions) is omitting to report the matters of assault and ill-treatment “to a constable of police” in accordance with s 148B(5)(b) (after notification and prompt investigation: s 148B(2) and (5)(a)).

36. Section 5B(1)(a) and (b) imposes statutory conditions which must be satisfied before a finding of negligence can be made. They are, first, that the relevant risk of harm, as correctly identified, is foreseeable in the sense of being a risk of which the Department knew or ought to have known. A risk is foreseeable if it is neither fanciful nor far-fetched: McKenna and Simon at 45, [30]. The second condition is that “the risk was not insignificant”. This condition requires a focus on the potential magnitude of the harm and its probability of occurrence, important considerations which require further evaluation when assessing whether a reasonable authority in the position of the Department would have taken the suggested precaution: s 5B(1)(c). A foreseeable risk of trivial injury which is extremely unlikely to occur would be insignificant for the purpose of s 5B(1)(b). However, a risk of appreciable injury, even one having a relatively low probability of occurrence, would satisfy the statutory criterion of “not insignificant”.

37. In each case, there was a foreseeable risk of ongoing physical and sexual abuse. In TB’s case, the Department knew that frequent and serious sexual and physical abuse had occurred over many years in the past, right up to then recent times. The stepfather was known to have a criminal record for prior sexual assaults and to be on bail for a charge of seriously sexually assaulting his son’s 15 year old girlfriend. The abuse of TB and DC post-dated his imprisonment for previous sexual offences from which it may be inferred that imprisonment had failed to correct him. Even if there was some good chance that the stepfather may curb his behaviour after the Department’s involvement, in my assessment, the risk of the occurrence of further incidents was neither far-fetched, fanciful nor insignificant. There can be no question on the facts known to the Department through District Officer that the risk of further abuse occurring was not insignificant (see 384.10 - .45T).

38. The same analysis applies in DC’s case. From what the District Officer was told, the frequency of abuse may not have been as great in her case, but it was of the same level of seriousness involving the same perpetrator with a significant criminal history. Notwithstanding the intervention of the Department, in DC’s case, I am satisfied that there was a risk of further incidents of sexual and physical abuse which is neither far-fetched, fanciful or insignificant.

The response of the not wholly unreasonable authority

39. The next question in the assessment of breach is whether “in the circumstances, a reasonable person in the [Department’s] position would have taken” the suggested precaution. This is the real issue to be decided in the circumstances of this case when assessing whether the Department breached its duty. This is because the plaintiffs contend that the Department failed to report the matter to the police, and the Department maintains that it did. To spell it out, if it did, it did not fail to take any suggested precaution against the risk of TB and DC suffering ongoing sexual and physical abuse, and accordingly it is not negligent.

40. This is one of the critical questions in the case where the long effluxion of time and the relevant absence of contemporary documents impose the greatest difficulty for the parties in proving the facts for which they respectively contend. That being so, it is important to remain mindful that the plaintiffs carry the legal onus of persuasion.

41. Before reviewing the evidence and making such findings as it may support, there is another legal matter to which I must refer. Section 5B(1)(c) deals with what at common law was thought of as the evaluation of the likely response of the reasonable person to a correctly identified foreseeable risk of harm. It involves a balancing exercise in which various, perhaps competing or conflicting, factors are weighed and considered. It is essential that the balancing exercise is undertaken from the wholly prospective point of view of a reasonable authority in the position of the Department, without actual knowledge of the harm which will befall the plaintiff, and as though it had not yet occurred. To put it more simply the benefit of hindsight is absolutely forbidden.

42. There is an additional consideration in cases involving the potential liability of public authorities in which the provisions of Pt 5 CLA are engaged. This is such a case because the expression “public or other authority” means, inter alia, “the Crown … or … a Government department”: s 41 CLA.

43. Section 148B(5) confers power on the Director of the Department, appointed by the Governor under s 5(1) CW Act. However, the proceedings have been brought under Crown Proceedings Act 1988 (NSW) without objection.

44. Where s 43A CLA applies, it either attenuates or lowers the standard of care to be applied when answering the s 5B(1)(c) question; or perhaps interposes another question to be considered with the s 5B(1)(c) question. The difference is unlikely to be material. That question, as adapted to the circumstances of this case, where negligence is said to consist of a failure to take a specified step in the exercise of a statutory power, is, was the failure to notify the police in the circumstances so unreasonable that no government authority having the powers conferred by s 148(5) could properly consider that omission “to be a reasonable exercise” of its power.

45. Section 43A applies where the question of liability “is based on” the exercise of “a special statutory power”. “Special statutory power” is defined as a power that is conferred by or under a statute and is of a kind that persons generally are not authorised to exercise without specific statutory authority. It may be said that anyone has the power, indeed the obligation, to report serious crime to the police: Sykes; see now s 316 Crimes Act 1900 (NSW). But reporting to the police is only one example of a broader obligation falling upon the Director of the Department once satisfied that a child, inter alia, may have been assaulted. The obligation is to “take such action as [the Director] believes appropriate”. Ordinary people are not authorised to exercise the broad powers in relation to the welfare of children and young people conferred upon the Director by the CW Act. For example, an ordinary person who believes a child is neglected may activate a power in the Children’s Court to issue a warrant to any police officer, or an officer of the Department to take the child and detain him or her in a place of safety. Authorised officers of the Department and police officers in some instances may act without a warrant: s 76 CW Act. Looked at in this broader context, I am satisfied that the powers conferred upon the Director by s 148B(5) fall within the meaning of “special statutory power” in of s 43A.

46. Essentially this means the plaintiffs need to prove two things, first that any failure to report the matter to the police was “in the circumstances so unreasonable that no authority having the special power … could properly consider the … omission to be a reasonable exercise of … its power”; and secondly, that a reasonable authority in the position of the Department, “in the circumstances”, would have reported the matter to the police. Obviously the questions are inextricably bound together; a decision that the plaintiff’s argument fails the “no reasonable authority” test implies the availability of reasonable options. If minds may reasonably differ about options, it may be impossible to say that “a reasonable [authority] would have taken” the relevant precaution.

The evidence about whether the abuse was reported to the police

47. The starting point in relation to whether the stepfather’s abuse was reported to the police is the inter-departmental guidelines “in respect of matters relating to child abuse”. The departments involved are the Department, the New South Wales Police Service and the Health Department (Exhibit A.1). From the agenda for a workshop on 26th February 1982 for officers of the three departments, I infer that the guidelines had been adopted by that date (Exhibit A.2). The relevant terms are as follows:

GUIDELINES FOR OFFICERS OF THE DEPARTMENT OF YOUTH AND COMMUNITY SERIVCES, THE POLICE DEPARTMENT AND THE HEALTH COMMISSION IN RESPECT OF MATTERS RELATING TO CHILD ABUSE

GUIDELINES IN RELATION TO NOTIFICATIONS:

1.1   Receipt of Notifications of Suspected Child Abuse

All notifications of suspected child abuse are to be reported to any District Office or Child Protection Unit of the Department Youth and Community Service. The officer-in-Charge of such office is to ensure that Montrose Child Protection and Family Crisis Service is immediately notified of details of the reported case.

1.2   Format of notification

The Officer-in-Charge of the office receiving the initial notification is to ensure that all appropriate information is recorded on Form 1.

Form 2 is to be completed within seven (7) days of the original notification and referred to the Senior Executive Officer, Montrose Child Protection and Family Crisis Service. The person responsible for completion of this is the Case Co-ordinator negotiated at the time of notification, and includes a Field Officer or Child Protection Officer of the Department of Youth and Community Services or other designated community based worker.

Form 3 is to be completed by the Prime Worker and forwarded to Montrose within 28 days of the original notification if the case has been registered on the Central Register.

1.3   Registration of Cases

The Senior Executive Officer, Montrose Child Protection and Family Crisis has the responsibility for registration of cases. A written acknowledgement of receipt of the notification will be forwarded to the sender.

….

3.   DISCRETION:

3.1   Department of Youth and Community Services

....

3.1.2   Decision to Lay Complaint Under Child Welfare Act

Decision to lay complaint under appropriate section of the Child Welfare Act in respect of a child abuse case may be made by the following officers of the Department of Youth and Community Services: -

Senior Executive Officer (Montrose)

Senior District Officers;

Executive Officers, Family Crisis and child Protection Services;

Co-Ordinator, Family Crisis Service;

Resident District Officers

In emergencies where it is not practicable to obtain the approval of one of the above officers, Child Protection Workers, District Officers and Crisis Care Workers, may make such decisions but are to seek the covering approval of their senior officer as soon as possible.

3.1.3   Decision to Involve Police in Child Abuse Cases

The Senior Executive Officer (Montrose), Senior District Officers, the Executive Officer and the Co-Ordinator of the Family Crisis Service, the Executive Officer of the Child Protection Service and Resident District Officers of the Department of Youth and Community Services may make decisions to involve Police Officers. These decisions should be conveyed to the Officer-in-Charge of the Child Mistreatment Unit of the New South Wales Police Form who will take appropriate action.

It would be appropriate for such decision to be made in any of the following circumstances:-

Where there is a possibility of death of a child;

When the perpetrator has not been identified;

Where the child’s safety is caretaker(s) cannot be assured without court action against the perpetrator;

Where the safety of the child is dependent on the courts imposing conditions on the caretaker ensuring protection of the child whilst appropriate family intervention is initiated;

Where repeated and severe abuse has occurred to the child;

Where it is anticipated that danger to the worker may occur during investigation or removal of a child.

Any decision to involve Police Officers must be made as soon as possible after notification. Such decision does not necessarily preclude Departmental involvement for initial assessment and continuing support. Police involvement is not synonymous with court action which should be the result of a joint decision making process between responsible officers of the Department of Youth and Community Services, Police personnel and Health personnel if involved.

Any case involving the Police must be directed through the Child Mistreatment Unit.

…

3.2   Police Department

...

3.2.2   Decision to Lay Charges under the Crimes Act and/or Complaint Under the Child Welfare Act

Officers of the Police Child Mistreatment Unit may make decisions to lay charges under the Crimes Act and/or complaints under the child Welfare Act when consensus has been reached after consultation with the S.E.O. (Montrose) or a Senior District Officer or a Resident District Officer of the Department of Youth and Community Services. Decisions to take such action should be made in similar circumstances to those listed in 3.1.3 above. Where consensus is not reached the mater shall be referred to the Assistant Commissioner (Crime) and to the appropriate Regional Director of the Department of Youth and Community Services

48. These guidelines provide a detailed protocol for dealing with matters involving child physical and sexual abuse. Notification of suspected child abuse is to be reported to the District Office is to be notified and the officer-in-charge is to ensure “that Montrose Child Protection and Family Crisis Service is immediately notified of details of the reported cases” (emphasis added).

49. The officer-in-charge of the Blacktown District Office in April 1983 was Mr F.P. Maguire, who has been retired since 1995. Mr Maguire’s statement is Exhibit 3.10. With respect, it is clear from it that he has forgotten some details after all this time. At [17] he could not recall “if specific practices and procedures were documented and in place of child sexual assault”. He could not “recall any policy stipulating that all reports of child sexual assault ought to be referred to Montrose” ([20]). But after the formation of the Police Child Mistreatment Unit “and the development of Departmental policy relating to child sexual assault, reports were then made to the CMU” (at [17]). He also said, (as everyone would hope was obvious), “cases of sexual abuse were always regarded as serious and urgent”.

50. He gave evidence that his organisation of the Blacktown District Office involved delegating child protection matters, including child abuse, to his 2IC, Mr S.R. Frost. Mr Maguire’s expertise was in substitute care arrangements, particularly the fostering of children with disability. He managed the substitute care team and Mr Frost, the child protection team, reporting to Mr Maguire as necessary (506.20 - .30T). His memory was vague and he was uncertain about when what policies and procedures were created (507.15T). I interpolate that this is completely understandable given the effluxion of time. His recollection was that the reporting of matters to the police would not be undertaken informally. He said:

… we had a formal way of working things that we actually had, you know, guidelines as to who you should …

I understood him to imply the words “report matters to” (510.10 - .15T). Montrose had to be notified of all matters including child abuse matters (510.25T). He said:

… There was a formal requirement that, in matters of serious physical, emotional, sexual – specifically sexual – that police be notified. That was a requirement. And that was approved by myself in the role of senior district officer (511.5T).

51. Paragraph 3.1.3 of the guidelines provides examples of appropriate cases “to involve police officers”. There cannot be any question that the cases of TB and DC were such cases, involving as they did “repeated and severe abuse”. Consistent with the evidence given by Mr Maguire, “Senior District Officers” had the authority to make this decision. The guidelines required that “these decisions should be conveyed to the officer-in-charge of the Child Mistreatment Unit of the New South Wales Police form [sic] who will take appropriate action” (my emphasis). The decision to involve police “must be made as soon as possible after notification” (emphasis in the original). The guidelines make clear that court action, I infer by the police, is not automatic but “should be the result of a joint decision-making process between responsible officers” of the Department, police and health, if involved. Paragraph 3.1.3 emphasises in its concluding words “any case involving the police must be directed through the Child Mistreatment Unit”.

52. From paragraph 3.3.2 it is clear that it is contemplated that officers of the CMU had the final responsibility in deciding whether criminal charges should be laid. The decision to lay charges, however, should be made with the “consensus” of, inter alia, a Senior District Officer of the Department. But “decisions to take such action should be made” (emphasis added) in the circumstances outlined in [3.1.3] including cases of “repeated and severe abuse”. Where, I infer for some good reason, consensus was not reached “the matter shall be referred to the Assistant Commissioner (Crime) and to the appropriate Regional Director of the Department.”

53. In his statement (Exhibit 3.12) Mr Frost described that notifications of abuse “could become the subject of communications” between the District Office and Montrose. He was also aware of the establishment of the Child Mistreatment Unit in 1981 and recalls having communication with the officer-in-charge of that Unit, but not any particular case. In a statement he said “it was common practice” for District Officers to telephone the local police station or to accompany a child to the police station. In oral testimony he said that upon notification of “allegations” of sexual abuse the practice was:

We would ensure the child was safe, we would ensure we'd let the police know if there was sexual abuse and also we would place a child on a complaint before the Children's Court, it would be part of the practice (568.30T).

54. The practice was to report the matter by calling the CMU (569.5T). Contact with local police would be “on the advice of the CMU to take someone there” (569.20T). Generally the CMU would be informed by telephone and as part of the inquiry information may be sought about a suspect’s criminal record (571.30 - .40T). In his experience, however, it was not possible to “obtain someone’s criminal record by a simple phone call, in… informal cases from police officers … at Blacktown Police” (572.30T).

55. I find from this body of evidence, that in April 1983 there was a highly developed system for co-operation between the Department, police, and in some cases, the Health Department on serious cases like these. Although entitled guidelines, it was mandatory for these cases and their like to be reported not only to Montrose ([1.1]) but also, where [3.1.3] applied, to the officer-in-charge of the Child Mistreatment Unit: if the police were to be involved, it was mandatory to inform the CMU [3.1.3]. Moreover, the general expectation was that serious, validated cases, including those of “repeated and severe abuse” would involve a discussion between CMU and a Senior District Officer which would lead to charges being laid. If CMU and the Senior District Officer could not agree about this the question was to be resolved by superior officers, including, in the police force, at the Assistant Commissioner level.

56. I also heard “expert” evidence from two eminent criminal lawyers about police practices in the early 1980’s, Mr Cowdery AM QC (Exhibit 3.8) and Mr Winston Terracini SC (Exhibit A49). This is perhaps more relevant to questions of legal causation. In his report Mr Cowdery did not accept it was inevitable that the police would have charged the stepfather if the Department had reported the cases at hand to them. He was not asked to consider the contents of the guidelines, or whether he regarded them as pertinent. In his report (p 3), Mr Terracini acknowledges that “police were circumspect about bringing criminal charges and proceedings for sexual assaults against minors in the absence of corroboration (see s. 481 Crimes Act 1900, which was repealed in 1985)”. However, the similarity of the complaints made by TB and DC, the acknowledgment by their mother that abuse had occurred, and the opinion of the District Officer that the children were at further risk combine to make it extremely likely that the stepfather would be charged (Exhibit A.49 [2](v)).

57. In oral evidence, on assumptions including the details of abuse given by TB and DC, confirmation by the mother and a requirement under the guidelines to report to police, I asked “about the likelihood of the police deciding to act on the complaint” (521.40 - .10T). Mr Cowdery said (522.15 - .25T):

Well I think in those circumstances it would be likely that the police would decide to act.

The point that I was seeking to make in my report was that there is an independent discretion in the mind of the police that has to be exercised whenever a complaint is made to them, so they have to assess the reliability, the credibility, the substance of the complaint and the circumstances surrounding it.

Not every complaint to police is acted upon, but in the circumstances that you've described, then I would consider it almost certain concern that the police would decide to go further. (My emphasis.)

Mr Terracini agreed (522.30T). Both agreed that police assessment of the reliability of the witnesses would be an important consideration (525.50 – 526.35T). Mr Cowdery said that in the early 1980s “there was a greater reluctance to institute criminal proceedings in relation to these matters, unless of course it was very serious and corroborated, or at least confirmed case, for example where there might be serious physical injury or something of that kind. Those clear cases would be prosecuted” (532.20T). Mr Terracini agreed that “there was a general reluctance not to have the police involved, but it depended on the severity of the case, and obviously the compelling nature of the evidence” (533.15T).

58. I appreciate the great difficulty of proof for both parties arising out of the dearth of contemporary records. However, it is very difficult to understand, if these highly developed procedures had been followed, how the cases of TB and DC would not have resulted in charges being laid; that result could only follow if the matter had been escalated to a senior level resulting in an Assistant Commissioner of Police and a Regional Director of the Department agreeing that charges should not be laid for some good reason in the cases at hand. It is difficult to comprehend that cases escalated to that level would be lost in the mists of time without some record, or recollection of those involved, marking that escalation. This “apparent logic” and the probabilities flowing from it tend to favour a finding that these matters were not reported to the police as the plaintiffs contend.

The competing argument

59. As against this, the Department relies upon a number of factors: first, the existence of the practice of reporting physical and sexual abuse to police is circumstantial evidence that the practice was followed in the cases at hand; secondly, the District Officer knew of the guidelines, she had attended the workshop, was familiar with the officers involved at CMU and followed the practice in the general discharge of her duties; thirdly, evidence of the District Officer, and one of her colleagues, of a practice that a suspect could not be interviewed unless it was known police action would not be taken; fourthly, that the District Officer knew of the stepfather’s record at an early stage suggested police had been informed; fifthly, evidence of DC that she attended Blacktown Police Station; and sixthly, an assertion in applications to the Victims Compensation Tribunal that police were notified.

60. Dealing with the defendant’s first argument, the District Officer gave the same evidence as Mr Maguire and Mr Frost about the practice of reporting to police (343.20 – 344.35T). Ms Whale, who in 1983 was a Child Protection Officer at Blacktown and had some involvement with this case, gave evidence to the same effect, but she did not have a “clear memory of the exact protocol” (497.25T). It is common ground however, that no police action ensued. I accept that evidence of common practice is circumstantial evidence that it has been complied with. But for the reasons I have given when one considers the detailed provisions of the practice as contained in the guidelines, the existence of the practice in this case favours the plaintiffs rather than the Department.

61. The District Officer’s familiarity with the guidelines, the practice and her evidence of implementing them in given cases running to “double digits” (346.25T) really amounts to no more than the same point put another way. In any event, it was for a more senior officer to notify CMU in accordance with the guidelines. After the effluxion of 30 years the District Officer, understandably, has no actual recollection of the police being notified in these cases.

62. On 15th September 1983, the District Officer and Ms Whale spoke to the stepfather. He freely admitted having sexually interfered with TB and DC (Exhibit A12, p 3), and expressed resentment towards TB for notifying the Department. He was angry and did not accept responsibility for “his abusive behaviour”. The District Officer wrote “[the stepfather’s] attitude is considered extremely destructive for the children’s emotional welfare and appears unlikely to change”. Both the District Officer and Ms Whale gave evidence (346.5T), (Ms Whale referred to it as “like a golden rule” (494.45T)) that the stepfather would not have been interviewed unless they knew the police had decided not to take action against the stepfather. Ms Whale also said “we didn’t interfere with police evidence if there was a chance of a police case being pursued” (497.30T). In her statement to police on 21st July 2005 (Exhibit A.41), for the purpose of the stepfather’s prosecution, Ms Whale stated, in effect, that she knew a police prosecution was not proceeding when the stepfather was interviewed on 5th September 1983, but she could “offer no reason” to the interviewing police “as to why the [police] file cannot be located” (Exhibit A.41 [8]).

63. The context of the interview with the stepfather was that the Department had become aware, that notwithstanding remand orders made in the Children’s Court conditioned on the stepfather living separately from the family, he had been making frequent visits to the home, apparently encouraged by the mother (Exhibit A.12). The District Officer was concerned about this because of his history, his resistance to change through previous therapy and his lack of acceptance of responsibility for his behaviour (Exhibit A.12). His attitude was a factor putting the children at further risk. However, the District Officer agreed that it was also possible that interviewing the stepfather in September 1983 was consistent with no complaint having been made to the police (467.35 – 468.10T). This point may, therefore, be neutral, capable of supporting either side of the argument, depending upon other factors.

64. The District Officer accepted that the cases at hand were covered by the guidelines and ought to be reported to the police. She said (489.10T):

I don't have enough recollection of the time but I, as confident as I can be 30 years later and knowing the practice that I had and how strongly I felt about the protection of children, I believe I would have [reported the matter to the police].

65. It is to be recalled that the District Officer provided Montrose with the information from which the Child at Risk Notification for DC (Guidelines Form 1) was completed. She probably also provided information for TB earlier. Exhibit A.6, which bears number 83/1474 refers to an earlier report bearing number 83/1456. In providing that information, the District Officer provided some details of the stepfather’s criminal record, and the pending criminal charges for the sexual assault of his son’s girlfriend, of which he was later convicted. It is her firm belief from her apparent knowledge of those matters that she must have reported the matters to the police probably by telephoning Blacktown Police Station at which time she would have received information about the stepfather’s criminal record.

66. When the District Officer was cross-examined on the content of the guidelines, the following evidence emerged (475.40T):

Any decision to involve police officers must be made as soon as possible" with the words "as soon as possible" underlined in the guidelines after notification?

A. Yes, that's what the guideline says.

Q. There is no indication in this case that any consideration was given in April 1983 to reporting to police, is there?

A. I can't agree with that because the line in the notification document gives me a belief that there was a discussion with the police early.

Q. That line in that document would be consistent with someone finding out this man's record but not consistent with any reporting to police?

A. It's absolutely consistent with it being reported to the police. The way things happened in that time, there was telephone conversations that occurred and the way things operated, you'd receive a notification call, you'd have a discussion with the senior officer, you make decisions about what are the appropriate courses of action to take in the investigation phase, then those things would be done and then there would be consideration of the information that arose from those and what's written on that notification page, from my memory of how we did things at the time, (I think that a phone call was made to the police at that point) (Concluding clause struck out at my direction upholding TB and DC’s objection: 476.20 - .30T.)

The reference, “the line in the notification document”, is to the stepfather’s record contained in Exhibit A.6.

67. The difficulty with this explanation is that it conflicts with the evidence given by the District Officer before the Children’s Court (Exhibit A.14). On 19th September 1983 at the Children’s Court, the applicant, a Mr Marsden, (referred to as the Court Officer) tendered the stepfather’s criminal record which was admitted as Exhibit 4, and the following evidence was given:

Q.   Did you cause inquiries to be made in regard to any criminal convictions?

A.      Yes. The prosecutor here got the record.

COURT OFFICER that also tendered on prior occasion of [stepfather] [sic]

ADMITTED AND MARKED EXHIBIT 4 BY CONSENT (RECORD OF [stepfather]).

BENCH   In relation to that there is no result in relation to sexual assault charge. Is that in relation to the girls. [I understand this to be a reference to TB and DC].

A. No it relates to the alleged rape. There has been one court appearances [sic] and remanded to later this year.

The “alleged rape” is the sexual assault charge relating to the stepfather’s son’s girlfriend from 17th January 1983.

68. In answer to questions of mine, the District Officer said that she could remember “plenty of occasions” where information about parents criminal history had been obtained over the phone. The information would not be given “willy-nilly … we would have to give them the information about the case in order to get the information about the person in question”. She said that she did not remember calling the police to obtain information, she recalled “calling the police because we wanted to tell them” about the abuse (481.15 – 482.25T). She gave the following additional evidence about that topic (482.30T):

Q. You also had been reminded earlier in your evidence, I think on Friday, that the actual formal record that was used as evidence in the Children's Court wasn't obtained by you but was obtained through the advocate who acted as prosecutor, in inverted commas, in the Children's Court at your request?

A. There were two different kinds at Cobham Children's Court because Cobham Children's Court dealt with both matters under the Child Welfare Act as well as juvenile crime matters, so the court officer was a non‑police officer who put the case‑‑

Q. When you say the "court officer", you mean a person who's fulfilling the role of an advocate for the department, is that correct?

A. They're like a prosecutor but that wasn't what they were called, but there was also a person who was called a prosecutor who was the police prosecutor who was a police officer.

Q. Do you remember looking at the document on Friday which said that, I think, Mr Marsden was the court officer?

A. Yes, that's right.

Q. And that you gave evidence that Mr Marsden had obtained the formal record that was tendered at your request?

A. That's right.

Q. I think that was at page 42 of exhibit A?

A. Yes.

Q. At what stage of the proceedings did you ask Mr Marsden to do that? If you can't remember because it's been 30 years, did you have a practice in relation to obtaining that type of information in an appropriate case as to when you'd ask for it?

A. Mr Marsden wasn't the person. The prosecutor was a police officer who was at Cobham Children's Court who was the person who did the prosecuting in the juvenile offending matters, the child welfare matters.

HIS HONOUR

Q. So did you ask him or her?

A. Yeah, I asked the prosecutor who was the police person, Mr Marsden wasn't a police person.

Q. Alright, can you remember when you asked the prosecutor to get it, what the process‑‑

A. No, I don't have a recollection, I mean I am guessing.

Q. Well don't guess?

A. Yes.

Q. Are you able to say whether you recall having a practice that you would do that at some particular point in time or not?

A. I don't have a recollection of a lot of occasions of asking the police person at the court for information, no.

Q. Didn't happen frequently enough to constitute a practice?

A. No, I don't think so.

69. The evidence about ringing Blacktown Police direct to report abuse and obtaining the record in my judgment is inconsistent with the well-developed procedures contained in the guidelines. It is also inconsistent with Mr Frost’s evidence about him being responsible for ringing CMU, in compliance with the guidelines. It is inconsistent with the evidence of Mr Maguire that there would be no informal contact with the police about these matters. He said that he “would be very surprised” if that happened. As I have previously recounted, it was his view that there was “a formal way of working things that we actually had, you know, guidelines” (509.40 – 510.15T). I think that the District Officer is simply mistaken in her “recollection” about how she may have come by the stepfather’s criminal record. I prefer the evidence contained in the transcript of the proceedings of the Children’s Court on 19th September 1983. Moreover, the proceedings for DC’s protection were commenced on 22nd April 1983 (Exhibit A.4). The District Officer attended Court on that day with DC and the Department was represented again by Mr Marsden. The Form 1 Notification to Montrose occurred at 4:32pm that same day. This seems to leave sufficient time for the police prosecutor at the Children’s Court, present to attend to juvenile justice matters, to obtain the information that the District Officer required. In my view, the District Officer is mistaken in her recollection about how she came by the details of the stepfather’s record. That she obtained it does not prove that she personally reported the abuse to Blacktown Police.

70. In her first statement to Police, dated 20 January 2005 (Exhibit A.34) for the stepfather’s prosecution, the District Officer said (at p 4[26]):

I am unsure why the matter did not get reported to the police, but in 1983 [the Department] were not Mandatory Notifiers to the Police for Sexual Assault Offences and the matter only went to court. This changed until after the Sexual Assault Task Force in 1985 or 1986 [Sic].

71. This passage is certainly consistent with a consciousness as at 2005 that the matter had not previously been reported to police. In evidence (at 457.5T), the District Officer said that when the police officer asked the leading question “why it wasn’t reported to Police? … [she] made an assumption that “[the Police Officer] had some independent evidence of that”. The “that” being the failure to report. When pressed about the matter at (457.25 - .30T) she said she did not mean to imply that she accepted the abuse had not been reported. Her position was that she did not have a recollection: “and that’s still my – still my position. I don’t have a recollection”.

72. The Department relies upon evidence by DC that she accompanied the District Officer to Blacktown Police Station. Naturally, it submits this is compelling evidence that a report must have been made. The evidential chain commences with DC’s second statement to the police about her stepfather’s abuse, dated 1st June 2002 (Exhibit A.29). At p 6 [36] DC is recorded as saying:

I remember a [Department] officer taking me to see someone at Blacktown Police station about [the stepfather]. They said that they could not charge [the stepfather], as [TB] and I both had to make a complaint. And they told me that [TB] could not cope with court and so [the stepfather] was never charged. Instead they charged me with being a neglected child.

73. She dealt with the same issue in her evidentiary statement dated 22nd April 2014 (Exhibit A.48) in this way at [43] – [47]:

[The District Officer] came to see me wherever I was staying. I wasn't attending school at that time and [The District Officer] often used to take me to the Blacktown Office of [the Department] where I spent a lot of time just sitting. I would accompany [The District Officer] if she had to go out in the course of her duties. We would go to different places and I would wait until she was ready to move on to the next job.

187. Where there is a difference, I prefer Dr Diamond’s view. It makes more sense that the abuse over a long period of time would account for her severe condition. I prefer the view that the confrontation with the stepfather made manifest the underlying condition caused by the stepfather’s abuse.

188. TB submits that her injuries have destroyed a large part of her enjoyment of life including work, family and other relationships. She also submits that there is an effect of the symptoms of depression and anxiety on her personality, including its physical manifestation, such as her reliance on alcohol. She says an appropriate award as a proportion of a most extreme case is 85%. The Department dispute this, submitting that an award of no greater than 50% is appropriate in the circumstances.

189. TB is currently 47 years old and has 3 sons. According to the table of medium life expectancy for Australia she has a life expectancy of 88 years. She has from a very young age suffered sexual abuse at the hands of her stepfather. I have no doubt that such severe abuse has left deep psychological scars. In my view, her psychiatric illness will continue to impact on her enjoyment of her day to day life. This is so notwithstanding the steps she has taken in more recent years to control her life. She currently has a supportive partner and family yet the psychiatric evidence emphasises the dependence she has on such external figures to feel comfortable and at ease. Having regard to the nature of her injuries, the pain and suffering she has endured, the loss of amenity and enjoyment of life I assess her non-economic to be 66%. This entitles her to an allowance of $377,500, subject to the overall discount.

190. Turning now to DC, she says that during the many years since the 1970s she tried to block out the sexual abuse and the subsequent involvement with the Department. She says that around the stepfather’s trial and sentencing she had two intense periods of anxiety and that following those events her emotional state has changed, she has become much more prone to emotional breakdowns and a lack of functioning. She described feelings of anxiety, agoraphobia, panic attacks, breathlessness, palpitations, headaches and hyperventilation. Following the stepfather’s release on parole in 2010 she says that she suffers more nightmares and increased depression - “coping every day requires a big effort on my part” (Exhibit A.48). She describes: difficulty with sexual relationships; being in public spaces; answering telephone calls; going to shopping centres; leaving the house; and looking after her children on her own. She also describes strong dependence on her previous partners, children and, more recently, her girlfriends for assistance. Prior the trial in 2005 DC set up her own business which she continues to run however she says that there are periods when she is unable to apply herself fully and she remains at home only going out to do the shopping with the support of someone that she knows.

191. As with TB, Dr Diamond and Dr Champion in their joint report agree that DC has suffered from a mental illness since the age of 18. They said that she has suffered from conduct disorder, substance abuse, depression, dissociative symptoms, anxiety and chronic post-traumatic stress disorder. Dr Diamond says that she remains significantly psychiatrically unwell and she has built a life around accommodating her PTSD and despite appearing outwardly composed she lives with excessive levels of hyper-arousal, anxiety, fear, episodic panic, flashbacks and nightmares. He also says that her capacity to maintain emotional numbing and to dissociate her feelings during periods of high duress is breaking down. She is now reliant on medication and such coping techniques that she has employed in the past are not going to be adequate for managing in the future. Dr Champion agrees with Dr Diamond’s guarded prognosis given the extent and duration of DC’s symptoms. He is also of the opinion that there is a considerable possibility of an improved prognosis once the focus created by ongoing litigation is resolved. He questions Dr Diamond’s diagnosis of a major depressive disorder commenting that DC’s activities suggest motivation, concentration, and plans for the future. She has also ceased her antidepressant medication. He says that the interim history provided by Dr Diamond “suggests a level of being able to cope appropriately in terms of successful studies, increasing her qualifications, family life and continuing engagement in employment” (Exhibit 2). Dr Janina Szyndler, Clinical and Developmental Psychologist saw DC is 2006. At that time she said that DC generally functions extremely well on a day to day basis which is in part driven by her need to control the situation. She said that DC tends to be extremely vigilant after dark, has a fear of looking under beds, needs to have an escape route planned out of her bedroom or area where she is working, becomes stressed by certain TV programs and at times becomes concerned for her and her children’s safety.

192. There is some force in Dr Champion’s views. However there is no suggestion that there is any “litigation neurosis” in this case. The PTSD is related to child sexual abuse. It is unlikely to go away when the case is over.

193. DC submits that she has sustained injuries which like her sister have destroyed a large part of her enjoyment of life including work, family and other relationships. She also points to the ongoing effect of the symptoms of depression and anxiety. She submits that an appropriate award is 70% of a most extreme case. The Department says that an award of no greater than 35% should be made.

194. DC is currently 44 years old and has 3 children. She is presently single but has had significant partners during her life. According to the table of medium life expectancy for Australia she has a life expectancy of 88 years. As with her sister TB, DC has suffered sexual abuse at the hands of her stepfather from a young age. In my view, overall DC appears to be coping better than TB. I find that she has suffered substantial pain and suffering in the past and that her psychiatric illness has and will continue to impact on her daily live. I also find that she has to date led a largely successful life despite her illness. She has started her own business and continues to run it, employing a number of people. One needs to be mindful that the effects of abuse have blight her whole life. Having regard to these factors I assess her non-economic loss to be 47% of a most extreme case. This entitles her to $269,000.

Past care

198. TB submits that her need for care and assistance has been ongoing since 1984. In particular she says that it has increased since 2003 being the year in which her depression became severe enough to cause her to leave the workforce and 2005 when she developed agoraphobia and panic attacks. She claims damages for past gratuitous assistance on the basis of 7 hours per week from 1984 to 1992; 14 hours per week from 1992 to 2003 and 40 hours per week from 2003 to the date of trial (I note the original 50 hours per week has been reduced under s 15 CLA). She claims a total of $941,887. The Department submit that there is little evidence to support a claim for domestic assistance up to 2003 however after 2003 they state there is some limited evidence of assistance in the vicinity of few hours per week.

199. In her statement, TB says that her partners, children and friends have helped her in a “myriad” of ways to cope with her anxiety and agoraphobia (Exhibit A.47). Such assistance, she says, includes shopping, delivering things, checking the security of the house, general domestic household duties, staying with her when she is alone, filling up her car with petrol, taking the children to appointments, social activities or sport, caring for her when she is having a particularly bad time and accompanying her to social functions. TB’s former husband said that from the time they were married he provided TB with emotional support. He says that between 2005 – 2011 he was doing things for TB on a daily basis such as running errands, collecting prescriptions and grocery shopping and that he would take time off work to take her to medical appointments, attend court and meet with her lawyer. Clare, TB’s sister-in-law, says in her statement that she and her husband would take TB out to dinner once a week or fortnight, call every day to check on her welfare and look after the maintenance of her lawns (until her current partner moved in). Since moving in with TB in 2012 her current partner Shane says that he has assisted TB is a number of ways such as teaching her son to drive, taking her children to sport, taking TB shopping and to appointments, tending the maintenance of the lawns and gardens and hanging the washing on the line. TB’s former mother-in-law also says that she provided assistance to TB during her marriage, looking after her and the children when required.

200. Obviously not all of this assistance is covered by s 15; no claim is made or available under s 15B CLA. No real effort has been made to sort out what is recoverable under the section.

201. In my view, I agree that it is difficult to determine prior to 2003 the level of domestic support given to TB that relates solely to her psychiatric condition. I am willing to accept that some level of gratuitous care was required but the evidence does not permit me to find that the intensity and duration thresholds have been crossed in that period.

202. I accept that from 2003, when she started suffering from her depression, agoraphobia and panic attacks the assistance provided by her partners, family and friends has significantly increased. But in my opinion, TB’s claim for 40 hours per week overstates the gratuitous care needed and provided. Given the evidence of the nature of the services provided to TB, I am of the view that but for the injury some of the same services would have been provided in any event, especially those provided by her partners and children. I therefore allow a claim of 25 hours per week from 2003 onwards. I allow $461,312.50 (based on an average allowance of $30.50 per week, 25 hours per week over 605 weeks).

203. Looking now at DC, she submits that her need for care and assistance has been ongoing since 1991. She says that from 1999 she has required increased levels of assistance and a further increase from 2005 onwards. She claims damages for past gratuitous assistance on the basis of 10 hours of care per week from 1991 to 1998; 14 hours of care from 1999 – 2004; and 40 hours of care from 2005 to the date of trial (reduced from 50 hours per week under s 15 CLA). In total she claims $858,003. Contrary to this, the Department says that there is no basis on the evidence to infer that the level of services provided to DC across this time is referrable to any compensable personal injury, that is, the court could not be satisfied that there was a need for the services solely because of the injury which would not have been provided to DC but for the injury: s 15(2) CLA.

204. Since 1991, DC says that her partners, children and friends have helped her in a number of ways to cope with the difficulties caused by her psychiatric condition. Some of these include: delivering things, shopping, cooking meals, cleaning, assisting with laundry, accompanying her to social events, home maintenance and assistance with her children. From 1991 – 1998 she said her partner Frank would provide assistance with shopping, checking house security, checking the mail, taking the bins out and general care when she was feeling emotionally decomposed. Amanda, a friend of DC’s said that they met in 2002 and since then she has provided emotional support and assistance in the care of DC’s children. Another friend of DC’s, Isle, said that between 2010 – 2013 she spent approximately 10 hours per week with DC providing assistance and from 2013 she has visited DC each weekend. Tegan, another friend, also said that since 2009 her contact with DC has been regular, she sometimes takes her out food shopping, to medical appointments and assists her with cleaning and personal errands. She also has assisted with taking her children to appointments when DC has been unable.

205. Again not all of this assistance qualifies under the Act, and I have no way of separating the wheat from the chaff.

206. From the evidence before me I am not satisfied that prior to 2005 the statutory thresholds under s 15(3) have been crossed, i.e. the evidence does not establish that DC was provided with gratuitous services for at least 6 hours per week for a period of at least 6 months. I am also not persuaded that the all of the services provided to DC during this time arose as a result of her injuries and that but for her injuries she would not have been provided them: s 15(2) CLA. The evidence given by DC was largely unchallenged however I find that the evidence she gave and the evidence of friends and family is not beyond what one would expect in terms of the general give and take of family or social life. From 2005 onwards I am prepared to accept that she was provided with gratuitous services by her family and friends which arose as a result of her injuries, namely the unmasking of her PTSD which meet the statutory thresholds. I do not accept however that the services provided to DC were in excess of 40 hours per week. They largely include assistance with shopping, running personal errands, escorting DC out and about and helping with her children, not all of which is recoverable. A figure in the range of 20 hours per week in my view is more appropriate. I allow $319,272 for DC for past care.

Future care

207. I note the parties have agreed that the figure offered by Mr Morrison of $36 per hour for paid future care is appropriate. He says that TB and DC will require paid assistance for the remainder of their life including but not limited to domestic assistance, gardening maintenance, attending appointments and shopping. He claims 50 hours per week for TB and 40 hours per week for DC. Mr Wass says that such claims are not supported by the evidence. I do not propose however to adopt this figure of $36, there is no evidence before me of TB or DC employing any paid commercial assistance in the past nor is there any evidence I find convincing of either plaintiff’s intention to do so in the future. I will allow a sum of $27.96 per hour instead (the current rate for s 15).

208. Dr Diamond as I have already said has diagnosed TB as having a chronic lifelong condition. I repeat here what I have said above that she has made a very determined effort to take control of her life but she still has a marked dependence on others to make her feel comfortable and engage in basic activities. Dr Champion has expressed the view that her prognosis must be extremely guarded given that her PTSD seems to be treatment resistant, however it may improve after the current focus on litigation is resolved. Rene Napier, a clinical and forensic psychologist who TB has seen on a number of occasions in her report dated 14th April 2011 made the comment that TB has engaged in small steps which indicate a new possibility of recovery and she hopes that TB will continue to make steps towards living independently and developing a fulfilling life. In my opinion, such comments are promising and indicate to me that TB may slowly become more independent and able as time goes on. The reality of the situation is however not so bright, she is living with a chronic lifelong condition which at the moment is proving to be treatment resistant. Taking this into account and providing for the chance that she may make additional gains I would allow a claim for care of 20 hours per week. As I have already said TB is 47 years old and according to the medium life expectancies table her life expectancy is a further 41.37 years. The 5 per cent multiplier is 924.8. I allow $517,148 to TB for future care however I reduce this figure by a further 15 per cent on account of the chance of improvement and that she would need care in any event because of the effects of age. The figure I allow is $439,576.

209. For DC Dr Diamond says that she will always be a vulnerable individual and although she has a remarkable tenacity to persist and cope she does become overwhelmed. He also says that this vulnerability will continue to grow especially as her children who she is highly reliant on start to grow and live independently. Dr Champion holds a similar view of DC as he does with TB finding that her prognosis is guarded at this stage but there may be a reasonable chance this will improve considerably upon the resolution of the litigation. The Department points to the statement of Matthew Toohey, DC’s accountant who says that while DC has periods of non-communication, she can bounce back firing and work manically to get back up to date. In my view, DC does appear to be more able and independent than her sister and I think that this will continue into the future. I also recognise the comments made by Dr Diamond that she is a vulnerable individual and I think some level of assistance for the future will be required, particularly as her children get older and start living more independent lives. An appropriate allowance in these circumstances is for 12 hours per week. DC is 44 years old, her life expectancy is 44.35 years. The 5 per cent multiplier is 944.5. I allow $316,898.64 to DC for future care however I reduce this figure by a further 15 per cent on account of the chance of improvement and that she would need care because of the effect of age in any event.

Past economic loss

210. Prior to 2003 TB says that she was able to hold down a job for nearly 20 years. She says that between 1984 and 1992 she generally worked on a full time basis and then generally part time, averaging 20 hours per week. Her first job was in December 1983 for six months as an office junior for Pacific Pearls in Sydney. Between 1985 and 1987/88 she worked as a dental nurse for different dentists at Five Dock and Parramatta. After this she gained employment for approximately one year as a receptionist and office administrator. Then in 1989 she started working for a doctor in Gosford. She stayed with him for approximately five years and continued to work part time for a short while after her son was born in 1992. For the next 10 years she says that she continued to work part time for various dentists on the Central Cost until 2003 when she left dental nursing due to depression. She has not worked since this time. From 1992 – 2003 she claims loss of wages based on 50 per cent reduction in earnings calculated by reference to the average weekly total earnings (AWE) of all employees in NSW expressed as an annual earnings figure. This produces a figure of $191,274. From 2003 until the date of judgment TB claims total loss of earnings based on AWE expressed as a annual figure.

211. The Department questions the reliance on the AWE figures and point to the gazetted awards for Dental Assistants and Secretaries for 1985, 1990, 1991 and 1999 which disclose the rates of pay per week for someone 21 years or older with at least one year experience. These weekly amounts are substantially lower than the AWE relied on by TB. They also submit that TB’s claim for past loss of earning capacity from 1992 onwards relates to the period of time that she elected to work part time following the birth of her son.

212. I adopt the figure provided by the plaintiff of past economic loss based on a 50% reduction in earnings between 1992 and 2003. This sum is $191,274. I will however reduce this figure by a further 50% as there is merit in the argument of the Department that during this period she may have elected to work part time following the birth of her son. The Department's argument overlooks, however that TB’s harm arose when she was untried and untested in the workforce. Had she been uninjured her prospects would have been much better. This is why it is appropriate to adopt AWE figures. I allow $95,637 for this first period. I accept the plaintiff’s calculation for total loss of earnings for the period of 2003 until the date of judgment, a total of $547,488. I allow a total of $643,125 to TB for past economic loss. I note however that this figure would require some recalculation given to bring it up to date.

210. DC left school after completing Year 9 and went into the workforce. Between 1984 and 2001 she worked as a legal secretary, bartender, office manager, produce buyer, personal assistant and an administrator. In the period between 2001 and February 2005 DC says that she had difficulty working on a full time basis and was not able to do so consistently. From 2001 to 2003 she worked as a “temp” through an agency mainly as a personal assistant or in accounts and in 2003 and 2004 she gained employment in the administration of FPA Health. It was during this time period that she also completed TAFE courses in OH&S and Electrical Tagging & Inspection.

211. From February 2005 onwards DC started working in her own bookkeeping business, Accountant’s Edge Bookkeeping Services (the business was originally established in the early 2000s under a different name, MAS Secretarial). She says that it was necessary to start her own business because she found it difficult to satisfy the normal basic requirements of any employer such as coming to work on time, working the rostered hours etc. because of her condition. Since setting up her business DC says that she has probably worked the equivalent of about half a normal working week and that there are periods (for about 2 months or so at a time) when she is unable to apply herself to the running of the business. This problem adversely affects the viability of her business and generally occurs she says every 2 to 3 years with the most recent period commencing in September 2013 and continuing at the time of writing her statement (April 2014). From 2009 – 2012 DC worked as an independent contractor for Wiseclick Training. This involved a combination of providing accounting services and teaching accounting and MYOB. During this time she could decide the number of days she work generally on average 25 – 30 hours per week. She was also able to refuse a job if she felt uncomfortable. Between February 2012 – September 2013 DC had a business partner named Melissa. DC bought Melissa out in September 2013 and her current working structure comprises of herself, and a number of employees: Mandy who works full time, Tegan who works part time and Ilsa who works one day per week. DC claims a loss of one third of her earning capacity, calculated with reference to AWE for the period of 1st January 2001 – 1st February 2005, being a total of $53,698. From February 2005 until the date of the trial (11th August 2014) she claims a further loss of earnings based on AWE less actual earnings, a total of $305,093.

212. The Department submit that DC’s claim for past loss of earning capacity between 2001 and 2005 is based on an unproven assumption of there being a one third loss in capacity. They also say that to calculate the loss from 2005 onwards based on the difference between AWE and actual earnings is not based on an objective assessment of the businesses profitability but for DC’s injuries.

213. I accept that DC’s severe psychiatric condition substantially reduces her earning capacity in manner likely to be productive of financial loss. It is clear from the contemporary records that she was a highly intelligent child. I think it likely that but for the injury her employment prospects would have been much brighter. As an untested child at the time of the putative tort AWE is an appropriate starting point for the calculation of her loss.

214. I accept the figure provided by the plaintiff in their schedule for DC’s past economic loss. I therefore allow $358,791 for this head of damage.

Past superannuation loss

218. I accept TB’s submission that an appropriate rate in this case is 10 per cent. In DC’s case the conventional rate of 11 per cent applies.

Interest of past loss of earning capacity

219. Interest would be allowed under s 18 CLA. In the circumstances there is no need to calculate it.

Future economic loss

220. TB makes a claim for total loss of earning capacity from the date of the trial until retirement age (67 years). The Department says such loss is not realistic or supportable on the basis of available evidence. TB says that the development of panic attacks and agoraphobia impairs her ability to hold down a job. Dr Diamond agrees that her employment prospects are limited. He says that while she talks optimistically about returning to the workforce in some capacity he does not believe that she has a realistic chance of long term consistent gainful employment. He does however say that she may have some capacity to perform bookkeeping type work or work that she can perform as a self-employed individual at home, although her ability to do this for full time hours is deficient. I accept Dr Diamond’s evidence. TB has poor prospects of returning to any remunerative employment.

221. I would adopt the figures proposed by the plaintiff for her future loss of earning capacity. TB has 20 years left in the workforce, the 5 per cent multiplier is 666.4. Based on a figure of $1,184 per week net and a reduction of 15 per cent for the vicissitudes of life I allow a figure of $670,664 for TB’s future economic loss.

222. Like her sister, DC says that but for her injury she would have continued to work full time until the retirement age of 67 years. From the date of the trial until 67 she claims a total loss of earnings based on AWE less actual earnings. The Department submits that the “evidence does not establish the bases for the assumption the Court must make about future earning capacity…and the extent to which they accord with the plaintiff’s most likely future circumstances but for the injury: s 13 CLA.” In dealing with the future effects (if any) of DC’s fluctuating mental state they advance two options; first that the Court could account for any risk of future impact by providing a modest buffer against that risk or second if the Court is satisfied with the calculations for future loss contained DC’s submissions then an allowance may be made for any short to medium term diminution in full time work capacity by providing a substantial discount of the notional earning capacity projected by DC based on the comparison of actual earnings and AWE.

223. Dr Diamond's view is that DC’s “future employment prospects are reliant on her own initiative and need to tailor unique work conditions so that her bizarre requirements to run a business without having appropriate client contact can be accommodated” (Exhibit A 79, p 367). It is only because she is working in her own business, in his opinion, that she remains in a state of gainful employment at this point. I understand this to mean that had DC not started her own business it is likely that she would be unemployed with little prospect of finding suitable full time employment.

224. I accept the evidence of Dr Diamond. There is no reason to assume other than but for the injury DC would have worked in employment bringing in something like AWE. I would accept the calculations proffered by DC for future loss being a loss calculated on the difference between the AWE and her actual earnings. She is as I have said 44 years of age and has 23 years left in the workforce. The 5 per cent multiplier is 712.2. Based on a figure of $564 per week net and a reduction of 15 per cent for the vicissitudes of life I allow $341,428.90 for this head of damage.

Additional global allowance for past and future economic loss

225. DC claims an additional sum of $150,000 on account of the likelihood that she would have achieved greater than the average weekly total earning figure applied in respect of her past and future economic loss. Reliance is placed on the opinion of Ian Skead, a psychologist at Cobham Clinic who produced a report in 1983 in connection with proceedings relating to TB and DC in the Cobham’s Children Court which stated that DC’s intelligence was within the Superior to Very Superior Range of ability (Exhibit A 17, p 50). The Department argues that the report of Ian Skead lends little if any legitimacy to support a claim that DC would be earning more than the average weekly total earning figures.

226. DC’s argument overlooks the consideration that the adoption of AWE in the case of children untried in the workforce at the date of injury accommodates the competing probabilities. Prospects of over, as well as under, achievement are incorporated in the average.

227. In saying this, I also note the opinion of Dr Diamond in his final report (Exhibit A 79) that DC “is more likely than not to have had an even more successful career in the absence of the obvious impairments that exists” and that her “education and qualifications were significantly impaired by the major disruptions to her developmental history and her adolescent experiences”. But this prospect is likewise accommodated by adoption of AWE.

228. I would reject this head of claim.

Future Superannuation

229. I would accept TB and DC’s submission that 14 per cent of the allowance for future economic loss is the appropriate rate.

Out of pocket expenses

230. I adopt the agreed medical out of pocket expenses put forward by the parties (Exhibits B and C). I therefore allow $23,752.40 to TB and $5,401.45 to DC for medical out of pocket expenses. TB also claims further relocation expenses for costs of moving on two occasions (November 2010 and August 2011) out of fear that the stepfather would locate her for revenge. She claims $1,600 for each move being the cost of the removalist van and a further $550 being the costs of getting security doors fitted on her current rental home. I would allow these relocations costs. This brings the total out of pocket expenses for TB to $27,502.40.

Future treatment costs

231. Both TB and DC make a claim for future psychiatric treatment, namely the costs associated with psychiatric and psychological appointments and medications. TB claims a global amount of $60,000 and DC $30,000.  The Department says that these claims for future psychiatric treatment are not presented with any supporting evidentiary reference.

232. I would allow $30,000 for future treatment costs for TB and $25,000 for DC. It is in the nature of these things that precision is impossible.

233. My orders are:

In matter No. 2008/289325 DC v The State of New South Wales & Anor

1. Judgment for the first and second defendants;

2. The plaintiff to pay the first and second defendants’ costs of and incidental to the proceedings on the usual basis forthwith after they have been agreed or assessed.

In matter No. 2008/289326 TB v The State of New South Wales & Anor

1. Judgment for the first and second defendants;

2. The plaintiff to pay the first and second defendants’ costs of and incidental to the proceedings on the usual basis forthwith after they have been agreed or assessed.

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Amendments

03 June 2015 - Paragraph 230: Persons name removed in accordance with law.

General typographical corrections made

27 May 2015 - Paragraph 199 Word "so" changed to "son"

27 May 2015 - Paragraph 199 Given name of the ex husband removed;
Given name of the son removed.

Paragraph 206 Third sentence - the word "general" between the words "of" and "the general" removed.

Paragraph 210 Name of the Doctor removed.

22 May 2015 - Paragraph 232 The full stop between the words "nature" and "of" has been removed.

Decision last updated: 03 June 2015